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Title VII: What's Hair (And Other Race-Based Characteristics) Got To Do With It?

This Article offers a revised analysis of Title VII race, color, and national origin disparate treatment cases involving mutable characteristics, like hair styles, clothing, and language. First, the Article submits that historically, definitions of race, color, and ethnicity have encompassed more than “immutable characteristics”. These historical definitions have indeed influenced our modern understandings of what signifies race, color, and national origin. Accordingly, courts must abandon the notion that race is an “immutable characteristic” and thus view race in a manner consistent with historical and contemporary conceptions - which takes into account characteristics that are mutable. Secondly, this Article argues that courts should consider the stigmatizing effects of employers’ formal and informal grooming and appearance policies and the resulting adverse employment action on applicants and employees when they fail to comply with such policies. Consequently, an employer’s policy or decision that perpetuates a pejorative racial, color, and/or ethnic stigma and causes individual and/or collective stigmatic harm should be found unlawful under Title VII. This Article maintains that applying this jurisprudential analysis to cases involving mutable characteristics will increase the viability of such claims. Furthermore, it will more adequately protect applicants and employees from being subjected to stigmatizing employment decisions that are deemed lawful under current jurisprudence yet contravene the prohibitions and promise of Title VII.